Social Democrats' leader, Lauri Läänemets, does not want to link the draft hate speech law to a government confidence vote. The proposal has more than 600 amendments, and even proponents of the law disagree on its meaning.
In June, the administration delivered the Riigikogu the hate speech law draft. In late September, the bill passed its first reading. Eduard Odinets, Constitutional Affairs Committee chair, said he did not know when the Riigikogu would pass it in the second reading.
"There are 600 amendments," he said. "We have no chance of dealing with all of them in a large chamber, even if we could deal with them in committee. So it is quite difficult to say what the status of this bill is."
Asked whether the draft could be linked to a vote of confidence in the government, Odinets said he would be happy to do so. "But I am not a member of the government, and I can only ask or advise – it is the government that decides," he said.
"I don't think we should tie any draft to a vote of confidence," Lauri Läänemets, the leader of the Social Democratic Party and the minister of interior, said in response to the same question. "I myself would prefer it if we did not."
Läänemets said that the fate of the draft depends on the EKRE. "Whether they finally want to find a solution and an agreement, or whether ultimatums will be pressed each time," the minister said.
Will the draft die on the Constitutional Committee table?
"I don't know," Läänemets said. "The Riigikogu will process it and we will see."
Erkki Keldo, the leader of the Reform Party group, said on Wednesday that it might be possible in the future to try to bypass the filibuster by having the committee select one of a number of similar proposals and then have the Riigikogu vote on the bundle.
Odinets said it was indeed worth considering linking the proposals. "The option proposed by Keldo has not yet been used, but if we look at past practice and the way the law allows bills to be processed, there would still be a very large number of these amendments," Odinets said.
Odinets said that the easiest way to move forward with the draft would be to tie it to a vote of confidence.
"Unless, of course, we come up with some way of eliminating those amendments that are put forward merely in the name of obstructionism."
The 'public order' clause sparks controversy
The question of how to get a second reading of the draft going has only been briefly discussed in the Constitutional Affairs Committee. Meetings so far have focused on technical legal problems.
In the spring, the Ministry of Justice came out with a draft restricting hate speech, which stated that "activities which publicly incite to hatred, violence or discrimination /.../ in a manner likely to threaten public order" will be punishable.
The state's chief prosecutor, Andres Parmas, said that such wording was not appropriate.
"Public order is a concept already used in criminal law and the Penal Code. And they use it in a different sense than the hate speech provision would now have. This creates further chaos in the legal order," he said.
In his view, the clarification in the draft was of little help: "A manner that may threaten public order within the meaning of this section is a manner that gives rise to fear of a violent act following incitement or that may significantly threaten the security of society."
"The mere fact that someone feels offended or discriminated against does not threaten society's safety," Markus Kärner, undersecretary for the criminal policy at the Ministry of Justice, explained the notion of "public order." What matters here is "society's fundamental security and how safe people feel in themselves," he said.
However, Parmas stressed that people need to read the law and understand what is punishable and what is not.
Kärner said that the concept of public order to be transposed from EU law means something quite different from the concept of "breach of public order" that Estonian people are used to.
The use of this term was necessary, he said, because it is what EU law allows to be used for the punishment for hate speech. "It is a narrower definition that we spell out in our own law. But in doing so, we want to ensure that we have transposed the definitions in the EU Framework Decision into our own law," he said.
Constitutional Affairs Committee expects concept of 'public order' to be reintroduced in the final draft
The Ministry of Justice eventually agreed with Parmas' arguments and considered that it was not right to create further interpretations of the notion of "public order." A month later, the draft was sent to the government without mentioning the concept.
The new version of the draft states, "Activities which publicly incite to hatred, violence or discrimination on the basis of nationality, race, color, sex, language, origin, religion, sexual orientation, political opinion, or financial or social status in a manner which gives rise to a fear that the incitement will be followed by an act of violence or pose a serious threat to the security of society."
Kärner explained that "petty insulting comments, ill-thought social media posts and rudeness can be excluded, but the speaker's influence must be weighted." So context of the speech or deed matters most. While a post on social media might have little effect on social processes, "a stage rallying cry for like-minded people that incites to hatred, especially by an authoritative figure or when hatred is systematically incited, this may be different," he said.
"In the opinion of the Ministry of Justice, this wording of the draft is even more specific and should not create further problems in practice, including over the definition and application of public order," the ministry stated.
Carri Ginter, a lawyer who assisted the Ministry of Justice in drafting the bill, said that the amendment was not a wise one. He told Vikerradio in early November that the initial version of the draft was as clear as possible.
"A threat to public order within the meaning of EU law refers to something like revolution, terrorism, mass attacks on people or something like that," he said.
"In that case, we would have met the EU minimum and we would have been really prepared for, let's say, an imam in a radicalizing mosque calling for bombings. But 'give rise to fear of an act of violence' is even more broad than merely 'threatens public order,'" Ginter explained.
The issue has also been repeatedly discussed in the Constitutional Committee of the Riigikogu. The chair of the committee, Eduard Odinets (SDE), said that no decision had been taken on which of the two versions is better. He said it was also possible to reintroduce the concept of public order into the draft.
"I admit it's a possibility and the more I discuss it with other people, the more I appreciate it, personally," he said.
At the same time, Odinets pointed out that the aim should not be to achieve the minimum required by the EU. "I would like to discuss much broader the tolerance of hate speech in our society and perhaps more broadly than the EU Framework Decision prescribes," he said.
Ministry of the Interior proposed compulsory winding-up of legal persons.
In October, the Ministry of the Interior sent a proposal to the Riigikogu to add to the draft law the possibility of compulsory dissolution of legal entities convicted of hate speech. Interior Minister Lauri Läänemets (SDE) recalled that such a possibility existed in the law before 2015.
"At the time, there was a belief that simply fining people would bring them to heel, but today we can see that it doesn't work. Sometimes the fine is paid and sometimes the fine is not even paid and the action continues," Läänemets said.
Liina Pello, adviser to the internal security policy department of the Ministry of the Interior, also told the Constitutional Affairs Committee of the Riigikogu that the fine alone does not help.
"Especially in the current circumstances, with the war in Ukraine and the Palestinian-Israeli conflict and even organizations making hostile statements," she said.
Pello specified that one particular organization had called for support for Palestine in a series of posts, while at the same time inciting hatred against Jews. Varro Vooglaid (EKRE) asked Pello which organization she had in mind, but Pello did not respond.
Läänemets gave the example of the Estonian branch of Sputnik (whose output is not currently readable). "We don't legislate just because of one organization or another," Läänemets said. "The law is written so that even if we have just one such organization, we could deal with it."
"This amendment received a very cool response at the committee meeting," Odinets said.
During the committee meeting, politicians asked whether political parties and press publications are also counted as legal entities. Interior Minister Läänemets said that this was not the ministry's intention. He said that the dissolution of political parties is regulated by the Political Parties Act.
"And, of course, nobody here thinks that we are going to shut down free media," Läänemets said. "But if somebody sees that this provision can be worded better, it should be done."
Editor: Barbara Oja, Kristina Kersa